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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Sarang V. Kotwal, J.
Sudha Bharadwaj – Appellant
Versus
State of Maharashtra – Respondent
Criminal Bail Application No. 428 of 2019
Decided On : 15-10-2019
Indian Penal Code, 1872 - Sections 121, 121A, 124A, 153A, 505(1)(b), 117, 120B - Unlawful Activities (Prevention) Act, 1967 - Sections 13, 16, 17, 18, 18B, 20, 38, 39, 40 – First Information Report – Tenant – Anticipatory bail - . At that time, some provocative speeches were delivered. A few objectionable and provocative books were kept for sale at the venue. It was his contention in the FIR that a banned organization-Communist Party of India (Maoist) [hereinafter referred to as CPI (Maoist)] was inciting violence by creating communal disharmony. According to him, the members of Kabir Kala Manch spread hatred through their songs, plays and speeches causing enmity between different communities. As a result, there were incidents of violence, arson and stone pelting near Bhima-Koregaon. Accordingly, the FIR was lodged naming six members of Kabir Kala Manch. The investigation progressed and based on the material gathered during investigation, Section 120B of IPC was added – Held, Things said or done by conspirator in reference to common design - Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to be so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it - Reasonable ground exists for believing that A has joined in a conspiracy to wage war against the Government of India - Facts that B procured arms in Europe for the purpose of the conspiracy, C collected money in Calcutta for a like object, D persuaded persons to join the conspiracy in Bombay, E published writings advocating the object in view at Agra, and F transmitted from Delhi to G at Kabul the money which C had collected at Calcutta, and the contents of a letter written by H giving an account of the conspiracy, are each relevant, both to prove the existence of the conspiracy, and to prove As complicity in it, although he may have been ignorant of all of them, and although the persons by whom they were done were strangers to him, and although they may have taken place before he joined the conspiracy or after he left it - Last example given in the illustration shows that the contents of a letter giving an account of the conspiracy is relevant against a co-conspirator to prove his complicity. This is a very wide Section which covers cases like the instant case – Application dismissed
JUDGMENT :
Sarang V. Kotwal, J.
1. The applicant is seeking her release on bail pending trial in connection with C.R. No. 4/2018 registered at Vishrambaug Police Station, Pune. The charge-sheet is already filed. The charge-sheet is filed against the applicant for commission of offences punishable under Sections 121, 121A, 124A, 153A, 505(1)(b), 117, 120B read with 34 of the Indian Penal Code, 1872 (hereinafter referred to as I.P.C.) and under Sections 13, 16, 17, 18, 18B, 20, 38, 39, 40 of the Unlawful Activities (Prevention) Act, 1967, as amended in 2008 and 2012 (hereinafter referred to as UAPA).
2. The applicant was arrested on 28.8.2018. Initially she was kept under house-arrest. As of today, the applicant is in judicial custody. The charge-sheet is already filed against her.
3. The State of Maharashtra has opposed this application. On behalf of the State, the Assistant Commissioner of Police, Yerwada Division, Pune, Dr. Shivaji Panditrao Pawar has filed his affidavit dated 25.2.2019. For the sake of convenience, this affidavit is hereinafter referred to as States affidavit.
BRIEF HISTORY AND CASE OF THE INVESTIGATING AGENCY:
4. The FIR was lodged on 8.1.2018 at Vishrambaug Police Station by one Tushar Ramesh Damgude. The FIR was registered for commission of offences punishable under Sections 153A, 505(1)(b) and 117 read with 34 of IPC. According to the first informant, he was in the business of construction. Through a social networking site, he came to know that there was a programme at Shaniwar Wada, Pune on 31.12.2017 organized by Elgar Parishad. He attended that programme at around 2:00 p.m. on 31.12.2017. He further stated in the FIR that there were a few speakers, comperes, singers and other performers present on the stage. The informant was knowing Kabir Kala Manch and its members. He had read about them on social media and in the newspapers. He has further stated that some of the performers enacted short plays, performed dances and sung songs. According to him, the performances were provocative in nature and had effect of creating communal disharmony. At that time, some provocative speeches were delivered. A few objectionable and provocative books were kept for sale at the venue. It was his contention in the FIR that a banned organization-Communist Party of India (Maoist) [hereinafter referred to as CPI (Maoist)] was inciting violence by creating communal disharmony. According to him, the members of Kabir Kala Manch spread hatred through their songs, plays and speeches causing enmity between different communities. As a result, there were incidents of violence, arson and stone pelting near Bhima-Koregaon. Accordingly, the FIR was lodged naming six members of Kabir Kala Manch. The investigation progressed and based on the material gathered during investigation, Section 120B of IPC was added on 6.3.2018.
5. On 17.4.2018, the investigating agency conducted searches at the residences of eight persons, namely, (1) Rona Wilson, R/o Delhi, (2) Surendra Gadling, R/o Nagpur, (3) Sudhir Dhawale, R/o Mumbai, (4) Harshali Potdar, R/o Mumbai, (5) Sagar Gorakhe, R/o Pune, (6) Deepak Dhengale, R/o Pune, (7) Ramesh Gaychor, R/o Pune and (8) Jyoti Jagtap, R/o Pune. The residences of Shoma Sen and Mahesh Raut were searched on 6.6.2018.
6. It is the case of investigating agency that during the searches; documents were recovered from various computers/laptops/pen drives/memory cards. The seized articles were sent to Forensic Science Laboratory (for short ‘FSL’) for analysis. The cloned copies were received. On the analysis of those cloned copies, aforementioned Sections of UAPA were applied on 17.5.2018.
7. It is the case of investigating agency, as set out in the States affidavit that, based upon the seized and recovered incriminating material, it was revealed that a few more persons were part of the criminal conspiracy and their role was
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